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Alternative claims of breach of implied warranties and covenants under both breach of contract and negligence.

San Diego, CA |

Theoretically, in a construction situation, in addition to a claim for contractual breach of implied warranty of correctness of plans and specifications, breach of implied covenant to perform work in a good and competent manner, and/or breach of implied covenant to provide necessary items within owner’s control, (1) is it possible to also claim negligent violation of these same implied warranties and covenants? I have seen a parallel where a tenant can claim a breach of rental agreement through breach of the implied warranty of habitability and, in addition, negligent breach of implied warranty of habitability. The same goes for the implied covenant of quiet enjoyment.

If an implied warranty or covenant has statutory expression, e.g. Civil Code § 1941 for the implied warranty of habitability, and Civil Code § 1927 for the implied covenant of quiet enjoyment, it is also effective to claim negligence under Civil Code § 1714, failure to exercise ordinary care through violation of statutory duty, and apply Evidence Code § 669, i.e., failure to exercise due care through violation of a statute, ordinance, or regulation. (2) Are there similar applicable statutory counterparts of the construction law warranties and covenants which could be used claimed under Civil Code § 1714 and yield civil penalties and remedies, aside from disciplinary action? I found the answer to question (1): "Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort as well as a breach of the contract." Kuitems v. Covell (1951) 104 Cal.App.2d 482

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Attorney answers 2


A construction defect complaint usually contains many different causes of action and theories of recovery. There are different product liability causes of action that apply to devleopers of homes in subdivisions that do not apply to a contractor who remodels or builds one home. In both you can plead causes of action for express warranty based on written warranties and a cause of action for implied warranty which is not in writing but goes under the general principal that construction will be fit for its intended purpose and if it is defective, it is warranted for repair or recovery of the cost of repair under the implied warranty theory. Further questions please email me at or call 800-529-5908 (800-LAW-5908). Visit my real estate website at


In general you may have both contract and tort claims and remedies, and you may have 2 types of claims, but I wouldn't be so quick to see parallels between tenancy claims and construction claims. They're not at all the same thing and they're rarely implicated in the same fact pattern.

Your situation is complex and not really suited to an Avvo Q&A, and given that your written agreenments presumably have attorney's fees clauses, you need to consult a lawyer to discuss your legal as well as available administrative remedies through the CSLB and the DFEH, respectively.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.